South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Teresa R. Nicholson, d/b/a 19th Hole at Bermuda Run vs. SCDOR

AGENCY:
South Carolina Department of Revenue

PARTIES:
Petitioners:
Teresa R. Nicholson, d/b/a 19th Hole at Bermuda Run
1928 McBee Highway, Jefferson, SC

Respondents:
South Carolina Department of Revenue
 
DOCKET NUMBER:
01-ALJ-17-0340-CC

APPEARANCES:
Michael N. Couick, Esquire, for the Petitioner

Nicholas P. Sipe, Esquire, for the Respondent

Protestants: Rev. Charles Parrot
Mr. Jimmie Catoe
Mr. Ken Knight
Sheriff Steve McCaskill
Mr. Connie Payne
Mrs. Edith Payne
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE

This matter comes before the Administrative Law Judge Division (Division) pursuant to S.C. Code Ann. §61-4-520 (Supp.2000) for a contested case hearing. The Petitioner seeks an on-premises beer and wine permit for the location at 1928 McBee Highway, Jefferson, South Carolina. This matter is presently before the Division because of a protest by concerned citizens concerning the suitability of the location. The Respondent moved to be excused since but for the protests they would have issued the permit and license. This motion was denied. After notice to all parties and protestants, a hearing was conducted on October 18, 2001, at the Division in Columbia, South Carolina. At the hearing, the parties and all protestants were present.

FINDINGS OF FACT

Having observed the testimony of the witnesses and exhibits presented at the hearing and having closely passed upon their credibility, I make the following Findings of Fact by a preponderance of the evidence:

1. The Petitioner seeks an on-premises beer and wine permit for the location known as 19th Hole at Bermuda Run, located at 1928 McBee Highway, Jefferson, South Carolina.

2. The Respondent, South Carolina Department of Revenue, determined that the

location and the Petitioner met all statutory requirements and would have granted the permit but for the protests as to suitability of the location.

3. The location is at the entrance to the Bermuda Run Golf Club. The Petitioner intends

to close the location on the days it is open at a reasonable time after sundown. She expects the patrons will be golfers leaving the golf course. There currently is a convenience store at the entrance which has an off-premises beer and wine permit. The Pro Shop on the grounds of the golf course has an on-premises beer and wine permit.

4. Sheriff McCaskill opposes the permit on a public safety basis. The other Protestants

are part of the community in which the proposed location seeks to open. Most, if not all, of them are members of Mt. Pisgah Baptist Church which is approximately one mile from the proposed location. Rev. Parrot is the minister at the church.

5. There are no churches, schools, or playgrounds within close proximity of the

proposed location. There is minimal child traffic in the area.

6. The applicant is of good moral character. The State Law Enforcement Division's

criminal background investigation revealed no criminal violations.

7. The Petitioner is at least twenty-one years of age, a U.S. citizen, and citizen of the

State of South Carolina, and has maintained her principal residence in the State for at least thirty days prior to the application. The Petitioner has resided in the community of the proposed location for thirty-two years.

8. Notice of the application appeared in The Kershaw News, a newspaper of general

circulation in the area of the proposed location, once a week for three consecutive weeks and notice was posted at the proposed location for fifteen days.

9. Sheriff McCaskill testified that the location of the store close to a bend in the

highway could cause a traffic hazard when persons who have consumed alcohol leave the premises. The other Protestants cited concerns about traffic safety and the long distance their community is from law enforcement assistance if it should be needed. They fear the presence of alcohol will cause problems in the area. Therefore, they believe the location is unsuitable for a permit.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I conclude as a matter of law, the following:

1. The South Carolina Administrative Law Judge Division has jurisdiction over this matter pursuant to S.C. Code Ann. § 61-2-260 (Supp. 2000).

2. The factual determination of whether or not an application is granted or denied is usually the sole prerogative of the agency charged with rendering that decision. Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984).

3. Although "proper location" is not statutorily defined, broad discretion is vested in the trier of fact to determine the fitness or suitability of the proposed business location of an applicant who is seeking a permit to sell beer and wine. Fast Stops, Inc., v. Ingram, 276 S.C. 593, 281 S.E.2d 119 (1981); Ronald F. Byers v. South Carolina ABC Comm'n, 281 S.C. 566, 316 S.E.2d 705 (Ct. App. 1984) (beer and wine permit); Schudel v. South Carolina ABC Comm'n, 276 S.C. 138, 276 S.E.2d 308 (1981) (sale and consumption license).

4. It is also the fact finder's responsibility to judge the demeanor and credibility of the witnesses and determine the relevance and weight of any testimony offered.

5. The determination of suitability of location is not necessarily a function solely of geography. It involves an infinite variety of considerations related to the nature and operation of the proposed business and its impact on the community within which it is to be located. Kearney v. Allen, 287 S.C. 324, 338 S.E.2d 335 (1985). Any evidence adverse to the location may be considered. Byers v. South Carolina ABC Comm'n, 305 S.C. 243, 407 S.E.2d 653 (1991). Further, the Judge may consider whether there have been law enforcement problems in the area. Palmer v. South Carolina ABC Comm'n, 282 S.C. 246, 317 S.E.2d 476 (Ct. App. 1984). Also, the Judge may consider the proximity or the absence of other licensed locations in the immediate vicinity, as well as the existence of small children in the area.

6. In considering the suitability of a location, it is relevant to consider the previous history of the proposed location and to determine whether the testimony in opposition to a permit consists of opinions and conclusions or is supported by facts. Taylor v. Lewis, 261 S.C. 168, 198 S.E.2d 801 (1973).

7. Without sufficient evidence of an adverse impact on the community, the application must not be denied if the statutory criteria are satisfied. The fact that a Protestant objects to the issuance of a permit is not a sufficient reason alone to deny the application. 48 C.J.S. Intoxicating Liquors § 119 (1981).

8. S.C. Code Ann. § 61-4-525 (Supp. 2000) provides that a person residing in the county in which a beer and wine permit is requested to be granted, or a person residing within five (5) miles of the location, may protest the issuance of the permit if he files a written protest.

9. Permits and licenses issued by the State are not rights or property, but are rather privileges granted in the exercise of the police power of the State. See Feldman v. South Carolina Tax Comm'n, 201 S.C. 49, 26 S.E.2d 22 (1943).

10. Standards for judging the suitability of a proposed location for the sale of beer and wine are not to be determined by the local community's religious convictions. Criteria must be uniform, objective, constant and consistent throughout the State of South Carolina. The sale of beer and wine is a lawful enterprise in South Carolina, regulated by the State.

11. After considering all the relevant factors, I find that the location is suitable for the on-premises sale of beer and wine. There is nothing before me to indicate that the Petitioner would operate her business in an unlawful manner or in any way which have a negative impact on her community.

ORDER

Based upon the above Findings of Fact and Conclusions of Law, it is hereby:

ORDERED that the South Carolina Department of Revenue grant the Petitioner's application for an on-premises beer and wine permit.

AND IT IS SO ORDERED.



___________________________________

CAROLYN C. MATTHEWS

Administrative Law Judge



December 11, 2001

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

Copyright © 2024 South Carolina Administrative Law Court